NAGPUR: In a verdict that would bring respite to private hospitals, the Nagpur bench of Bombay high court on Friday ruled that the
Maharashtra government can’t fix rates for
non-Covid patients in these establishments.
Quashing two government notifications of April 30 and May 4 for fixing rates for non-Covid patients in private hospitals, a division bench comprising justices Ravi Deshpande and Pushpa Ganediwala held that the government isn’t competent to such directives under Disaster Management Act’s (DMA) Section 65.
“The legislature isn’t competent under public health and sanitation, hospitals and dispensaries in Schedule VII’s List II (State List) under the Constitution of India to either frame any law/issue any direction for putting a cap on regulating rates chargeable by private hospitals for non-Covid patients,” it ruled.
While setting aside the Nagpur Municipal Corporation’s (NMC) orders issued by the then commissioner Tukaram Mundhe on June 4, the judges said that neither the Epidemic Diseases Act (EDA), 1897, nor the Maharashtra Covid-19 Regulations, 2020 empower the government to issue directives regarding non-Covid patients in 20% isolation and non-isolation beds in private hospitals/health care providers and nursing homes. The NMC orders for fixing rates for non-Covid patients in private hospitals were based on April 30 and May 4 notifications by the state government.
“The government isn’t competent to issue such directives for non-Covid patients in exercise of power under DMA’s Section 65. This is clearly an encroachment over petitioner’s fundamental rights under Article 19(1)(g) of the Constitution of India to practise any profession or to carry on any occupation, trade or business,” they said.
Stressing that the private establishments are denuded of their control and regulation over 80% isolation and non-isolation beds due to government’s directives, the judges stated that they should be compensated under DMA’s Section 66.
“We, therefore, hold that such directives can’t be treated to have been issued in exercise of executive power under the Constitution of India, having a ‘force of law’, by which reasonable restrictions under Article 19(6) can be validly imposed,” the judges said.
Explaining about provisions under both Acts, the bench said EDA’s Section 2 enables taking of special measures and to determine in what manner and by whom the expenses incurred (including compensation if any) “shall be defrayed to patients suffering from epidemic diseases, whereas DMA’s Section 65 provides for their effective management”.
“None of the provisions of EDA or DMA create any statutory obligation upon the government to treat the non-Covid patients or to take special measures in respect thereof. The DMA provisions are complementary and supplementary, serving the EDA’s purpose and object. Whereas, EDA’s Section 2 enables better prevention of spread of epidemic, DMA’s Section 65 provides for patients’ effective management,” they said.
Applauding the study and efforts made by petitioner Dr Pradeep Arora, a paediatrician who is running a nursing home, the judges said he argued the case with a proper understanding of law even though he is not a lawyer. The HC also appreciated contributions made by senior counsel Subodh Dharmadhikari and Deven Chauhan, who were appointed as amicus curiae, along with advocate general Ashutosh Kumbhkoni and additional government pleader Anand Deshpande, during the case.